A Treatise on the Law of Merchant Shipping

trust,1 or of the personal representative of a sole deceased registered owner,* the Lord Chancellor may appoint persons to make the transfer, alone, or jointly with others, as the case may be. And if such sole registered owner, or one of such joint-registered owners of shares held upon trust,3 or the personal representative of a sole deceased registered owner,4 be out of the jurisdiction of the Court of Chancery, or cannot be found, or of whom it is uncertain whether he be living or dead,— or if such owner, sole or joint, being a trustee, neglect or refuse for twenty-eight days after request in writing, by the person entitled absolutely to the property, to transfer5—the Court of Chancery may appoint persons to make the transfer, alone, or jointly with others, as the case may be. And the persons so appointed by the Lord Chancellor, or the Court, are empowered to do all acts necessary to be done for the complete execution of the intended transfer."

If the purchase has been negotiated under a certificate of sale, the attorney or attornies have power under the same document, to do all things necessary to perfect a valid transfer of the property.7 But there are conditions of the validity of the certificate, and conditions of the validity of the exercise of the power which the purchaser should see to for his own security.

A certificate of sale must be for the disposal of an entire ship; the attorney or attornies exercising the powers must be named in it; the time within which the power may be exercised must be specified; the place of sale and the port of registry must not both be within the United Kingdom or the same British possession.* The power given by such an instrument, if exercised in conformity with the directions contained therein, enables the attorney or attornies to perfect the transfer and confer a good title to the ship."

The death of the principal, before sale, is no ground for impeaching a bond fide sale for valuable consideration effected in accordance with the authority of such a document; nor is the prior bankruptcy or insolvency of the principal any ground of objection, when the sale is to a purchaser without notice, under a certificate in which the place of sale is specified, and the time limited for selling does not exceed twelve months.1

If an attorney, under a certificate of sale, do not pursue his authority strictly, all acts done by him under it are invalid, and the registration that follows is a nullity in consequence.

The agents in Liverpool of a British shipowner in Prince Edward's Island, having been empowered by certificate of sale to sell The Polly Hopkins for not less than 1300Z., proposed on their own account to cover therewith certain bill transactions, and accordingly filled up a bill of sale for 900Z., which, upon the refusal of the registrar to register it as not pursuing the certificate, was altered to 1300J.; the certificate in the meanwhile was revoked, and then the bill of sale was placed on the register: but a bill being filed in Chancery by the original owner, it was there held that the sale was not bond fide, that the bill of sale, notwithstanding appearances, did not in reality accord with the power of attorney, and therefore was invalid, and that no title to the property passed by the registration thereof.'

Where property in a British ship, in consequence of its Statutory Subbeing transmitted to a person disqualified to be the owner, is ^aMed°Owner. ordered by a court of competent jurisdiction to be sold, the nominees appointed by that court for the purpose are the persons to make and perfect the transfer.3

In case of the sale of any vessel that still appears on the Under the former register as it stood under the 8 & 9 Vict. c. 89, a valid Stotuteunimpeachable transfer can only be made by the registered owner whose title appears duly indorsed on the certificate of registry, and for the share or shares of which he is by such indorsement the declared owner.*

Guardian of Infant.

To whom transferred.

An infant, though otherwise duly entitled as owner, cannot deal with the property himself, and any bill of sale and transfer on the register must therefore be executed by a person who stands in the relation of guardian, or is for that purpose appointed and authorised by the Court of Chancery.'

A transfer of the property in a ship, or share therein, as of any other chattel, may be made to any one; but for the purposes of the register there is a difference. A British ship is a vessel that belongs wholly to owners of the description given in the statute.' A valid transfer may be made of a share n such a vessel to a person who does not answer the description of a British owner; * but if the vessel, after thereby losing her national character, uses the British flag and assumes the British character, such interest of the unqualified person, whether it be legal or beneficial, is forfeited to the Crown; and so also is the whole ship, if such use and assumption are for the purpose of making her appear a British ship.4 The only exception to this latter declaration of forfeiture is in favour of vessels resorting, under stress of war, to a false flag, for the purpose of escaping capture.! Moreover, no transfer can be registered except upon a denial that any unqualified person or body of persons is entitled, as owner, to any legal or beneficial interest in the ship, or any share therein; and a false declaration, wilfully made on this point, incurs a forfeiture to the Crown of such interest as is possessed by the declarant, and by those on whose behalf he was authorised to make the declaration.8 These enactments make it a matter of the first importance to purchasers, and to co-owners with the vendor, that no interest, legal or beneficial, in any British ship intended still to retain her national flag and character, should be transferred to any but those who are qualified to be owners of a British ship.

The former Registry Act (8 & 9 Vict, c. 89) is repealed, and the 17 & 18 Vict, c. 104, came into operation on the 1st of May, 1855; but ships already regis- tered are not required to be registered anew. The particulars of the ship and all dealings with her continue as they stood on that day. New books, however, have been opened for coutinu-

ing such old registries, and such continuance will be under the provisions of the Merchant Shipping Act of 1854.

1 17 & 18 Vict. c. 104, § 99.

2Ibid. § 18.

3Ibid. § 103. * Ibid.

5Ibid.

6Ibid. § 38, 103.

Those who are qualified to be owners of a British ship are,1 Persons qualified

First, natural-born British subjects;* excepting any one who has taken the oath of allegiance to a foreign sovereign or state;—but this exception is suspended if he afterwards takes the oath of allegiance to Her Majesty, and while he is owner, continues resident within Her Majesty's dominions, or is

to be Owners of a British ship.

117 & 18 Vict c. 104, s. 18. In accordance with the change of policy which intervened since the previous enactment on this subject by the 12 & 13 Vict. c. 29, § 17, the law now requires in a natural-bom subject who has taken a foreign oatli of allegiance, and in one who is naturalised or made a denizen, first the oath of allegiance to Her Majesty; secondly, that while he continues owner he should be resident within the British dominions, or member of a British factory, or partner in a house actually carrying on business in the British dominions. The register serves a municipal purpose, and contemplates an international object. It ascertains the ownership of property for the convenience of Her Majesty's subjects, and it reserves for them alone the protection and honour of the British flag. See next chapter.

1 This includes children born out of the ligeance of Her Majesty, whoso parents are both natural-born British subjects (7 Anne, c. 5, I 3), and the children, so born, of a father who is a natural-born British subject, 4 Geo. 2, c. 21, § 1 ; Comyns Dig. Alien, Wall's case, 3 Knapp, P. C. 13. In this case the father had been a natural-bom British subject, and while in the servico of France had taken the oath of a knight of a French order; the mother was a Frenchwoman; and the son had been born in France and had served in the French army; the son was nevertheless held to be a natural-bom British subject. The children of such children as are natural-bom British subjects by the 4 Geo. 2, c. 21, arc themselves natural-born British subjects, 13 Geo. 3, c. 21, § 1; Drummond's case, 2 Knapp. P.C. 295. The exceptions are of those

whose fathers, at the time of tho birth of such children respectively, were or shall be attainted of high treason by judgment, outlawry, or otherwise, or were or shall be liable to the penalties of high treason or felony in case of their return without the royal licence to the United Kingdom; or whose fathers, at the time of the birth of such children respectively, were or shall be in the actual service of any prince or state at enmity with the British crown," 4 Geo. 2, c. 21. See Fitch v. Weber, 6 Hare, 51. The abjuration by a British subject of his allegiance to the Crown, and his promise of obedience to a foreign state, although it might have rendered him liable under the 3 Jas. 1, c. 4, § 22, 23, to the penalty of high treason, does not therefore disqualify the children or grandchildren of such British subject to be British subjects. Fitch v. Weber, supra. But the children of a British mother by an alien father, born out of the ligeance of Her Majesty, are not natural-bom British subjects, Doo d. Duroure v. Jones, 4 T. R. 300 j 25 Ed. 3, st. 2; although by the 7 & 8 Vict. c. 66, § 3. they are declared capable of taking real or personal estate by devise, or purchase, or inheritance of succession. Generally, children of alien parents bom in this country are natural-born British subjects; but there is an exception as to those who are in Her Majesty's dominions in the service of a foreign prince or state, Comyns Dig. A lien, A. B. ; Calvin's case, 7 Coke, R. 1, 18. The alien wife of a British subject, or of a person who is naturalised, is thereby herself naturalised, 7 & 8 Vict, c. 66, § 16.

Instrument of Transfer.

member of a British factory, or partner in a house actually carrying on business in some place in Her Majesty's dominions; —Secondly, persons made denizens by letters of denization, or naturalised by, or pursuant to, any Act of the Imperial Legislature, or any act or ordinance of the proper legislative authority in any British possession,1 if such persons, while they are owners, continue resident within Her Majesty's dominions, or are members of a British factory, or partners in a house actually carrying on business in some place within Her Majesty's dominions, and have, since their denization or naturalisation, taken the oath of allegiance to Her Majesty;— Thirdly, bodies corporate,1 established under, subject to the laws of, and having their principal place of business in, the United Kingdom or some British possession.

By the law of England and of Scotland, the transfer of property in chattels may be made by sale and delivery without writing." Ships, perhaps, are no exception at common law to

1 The means of naturalisation are now within easy reach, since the passing of the 7 & 8 Vict. c. 66, § 6, ct seq. ; but that statute does not apply to the colonies, 10 k 11 Vict. c. 83, § 3. By the 10 & 11 Vict. c. 83 all acts by the colonial legislatures for naturalising aliens within the limits of each colony respectively before that statute, are confirmed, and such an exercise of the legislative authority in British possessions is sanctioned and confirmed, provided such acts are not inconsistent with imperial policy, and are confirmed by Her Majesty. Persons are naturalised by or pursuant to Act of Parliament, or act or ordinance of a colonial legislature ; they are made denizens by letters patent of the Queen. A person who is naturalised is thereby inheritable to lands, and so are all his children, both those bom before and those after; and there can be no period to the naturalisation, for it is absolute in its effects on himself and his descendants. But letters of denization do not make the subject thereof inheritable to lands, though he may hold lands in fee by purchase; and the privileges conferred

thereby are confined to after-born children. Moreover these letters patent admit of limitation both of the privileges conferred and the time for which they are granted. See Co. Litt. 8 a. 129 a.; Bacon Abr. Alien (B).

3 It was held under the 8 & 9 Vict, c. 89, § 12, 13, that such a body might lawfully bo the registered owner of a British sliip or shares therein, notwithstanding there were aliens members of the Corporation, Reg. v. Arnaud, 9 Q. B. 806; and considered in this view, the Act of 1854 does not appear to have introduced any change.

* To this extent the common law of England agrees with that of Scotland. But whilst the jurists of England hold that by the sale of an existing specific chattel the property passes to the purchaser before delivery, those of Scotland, founding on the civil law, assume that no property passes till delivery, and that the purchaser meanwhile has only the jus ad rem specificam or titulnm transferendi dominii; Bell, Pr. § 88, 1299, 1300; 1 Stair, 14, § 2; 3 Ersk. 3, § 2.